WALKER, J., dissenting. (601) The plaintiff and her husband lived in this State at the time of their marriage. They removed to Kentucky. After a while they separated, she returning to this State, her husband going on to the State of Washington, where he died. There being no administration here, upon her application to a justice of the peace, under Revisal, sec. 3098, year's provision was laid off to her to the amount of a fund or debt due her husband ($51.42) by the defendant. This action to recover said amount of the defendant, by virtue of the allotment, was begun before a justice of the peace.
Year's provision was unknown to common law, and is intended by our statute as an emergency provision for the widow and young children who might otherwise suffer or be liable to be thrown upon the county for support. It is to be taken out of the personal property in priority not only to debts of the deceased, but in preference to costs of administration. It is to be promptly allotted, by the personal representative, if there is one, but if there is not, or if he fails or delays to allot, the widow can apply to a justice of the peace. Revisal, sec. 3098.
Dower is allotted under the law obtaining here, though the husband may be domiciled elsewhere. As to the personalty of the deceased, it may be controlled by the statute here if the Legislature so direct, but in the absence of such legislative direction, by comity it will be paid over by the personal representative to the personal representative in the State *Page 415 of domicile, first subject, however, to payment of debts due here and the legacies. In a remarkable and able discussion, Judge Pearson, in Alvanyv. Powell, 55 N.C. says (p. 53): "After devoting to the question much consideration, we are satisfied that the true principle, both in regard to personal and real estate, is the situs of the property, and that the principle by which a distinction is made between personal and real estate, so that in regard to the former a construction depending upon the domicile of the owner is adopted, is based upon a fiction which (602) has no application to `questions of finance'" — holding, therefore, that our inheritance tax applies — and adds: "The construction which adopts the situs of the property is first suggested to the mind and is yielded to at once, because it is based upon a fact; the property is here, it is protected, and passes by force of our laws. The construction which adopts the domicile does not suggest itself, and the mind will not entertain it except after a long argumentation and much ingenious and refined reasoning, because it is based upon a fiction. This makes it necessary to inquire to what extent the original object for adopting the fiction will justify its being carried." And, on page 55, that learned judge further says: "The principle of domicile, which is based on the fiction that personal property attends the person, and is to be considered as being where the owner has his domicile, is adopted by the comity of nations in reference to the distribution of the personal estate of deceased persons; but it has no application where the rights of creditors are concerned. Story Confl. Laws, 354; Moye v. May, 43 N.C. 131. It has no application to the property of living persons." This has been cited and affirmed. Redmond v. Commissioners, 87 N.C. 124; Jones v. Gerock,59 N.C. 193; Stamps v. Moore, 47 N.C. 82, and in other cases.
From the above very clear summary it will be seen that the fiction of personal property being considered as belonging to the domicile of the owner applies only to the distribution of the assets of one deceased. It has no application to payment of debts, legacies, costs of administration, nor inheritance taxes or death dues. For a stronger reason the fiction cannot apply where the wife is residing here at the death of her husband as against the year's provision, which is a humane provision to keep her and children from suffering and from being a county charge. The law sets it apart for that purpose in priority to debts, legacies, taxes and charges of administration, against none of which does the (603) fiction of the law of domicile prevail.
The subject has been before the courts of this country in only five cases. In Medley v. Dunlap, 90 N.C. 527, and Simpson v. Cureton,97 N.C. 112, in both of which the wife was residing with her husband in the State of his domicile at his death. In the latter case the Court, *Page 416 indeed, says: "This section has reference to a proceeding instituted by a resident widow." The reason for this provision of our law, therefore, did not apply, though the statute says "every widow" (Rev., sec. 3091), and it was properly held that she could not get the benefit of it by subsequently removing here. There were also the same facts in Mitchell v. Wood,64 Ga. 220, though there the minority of the Court was of opinion that the widow could have her year's provision, notwithstanding she did not remove to the State till after her husband's death. In Gilman v. Gilman,53 Mo., 184, the Court simply held that, the husband having died domiciled in that State, it had jurisdiction to determine the allowance to be made to the widow under their statute, and fixed the allowance at $85,000. Evidently this is not authority upon the principle of which our law allots a year's provision. In Shannon v. White, 109 Mass. 146, the testator died in Massachusetts, but stated in his will that he was domiciled in Indiana, where his will was probated. His divorced wife, residing in Indiana, for whom his will made no provision, applied for an allowance under the Massachusetts statute, "not to exceed her share of the estate," and it was held that, assuming she was the testator's widow, her rights in the estate must be adjudicated in Indiana.
It will thus be seen that there is no decision to the contrary of the views we have expressed. The fiction that the law of the domicile (604) governs as to personalty applies only to the distribution of the surplus, and does not obtain as against debts, legacies, charges of administration and taxes, and hence cannot prevail against the year's provision, which is superior to all these, when the wife is actually andbona fide residing here with her children at the time of her husband's death. The technical rule that her husband's domicile is her domicile is well settled, but the fiction of domicile does not, as we have seen, control as to realty, nor even as to personalty, except in the distribution of the surplus. The year's provision is not in the nature of such distribution, but a humane provision of urgency, taking precedence of all other claims against the estate. From its very nature and purpose, it has nothing to do with the husband's domicile, but is for the support of the wife and children if residing here at his death.
Dower is allotted to the widow according to the law here, and not according to the law of the husband's domicile. There is no reason why the year's provision should not also be allotted to the widow as allowed by our statute, if she is actually and bona fide resident here. The statute (Rev., sec. 3091) gives the year's support to "every widow of an intestate," or who has dissented from her husband's will. That would clearly include this plaintiff. If by judicial construction some widow must be excluded, certainly, in view of the evident purpose of the law, such construction should exclude the nonresident and not the resident *Page 417 widow. Usually the husband also resides here, but words used in the statute bearing reference to that fact cannot be justly construed as having any relation to the technical doctrine of domicile. It would be a denial of the intent of the statute to send this widow and her two children, resident here, across the continent to obtain this $51.42, which they instantly need, because of the lore in the books, correct technically, but untrue here as a fact, that the wife resides where her husband does.
In nonsuiting the plaintiff there was error.
Reversed. (605)